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United States Court of Appeals,
Fifth Circuit.
No. 93-3456.
Edward GIOVANNI, Plaintiff-Appellant,
v.
Bruce LYNN, Secretary, Department of Correction, State of
Louisiana, et al., Defendants-Appellees.
April 3, 1995.
Appeal from the United States District Court for the Middle
District of Louisiana.
Before POLITZ, Chief Judge, GARWOOD and BENAVIDES, Circuit Judges.
GARWOOD, Circuit Judge:
In this case, we are called on to decide whether a state
prisoner placed in extended lockdown for disciplinary violation
after a constitutionally adequate hearing, has a protected liberty
interest in being released from lockdown when the violation is
administratively expunged from his record for failure of the
Secretary of the state Department of Corrections to act on his
appeal within the 120-day limit imposed by the prison disciplinary
rules. We hold that no protectible liberty interest is created by
this appeal procedure and therefore affirm the judgment of the
district court dismissing appellant's claims.
Facts and Proceedings Below
Plaintiff-appellant Edward Giovanni (Giovanni) is an inmate at
the Louisiana State Penitentiary at Angola (the Prison). On August
22, 1988, Prison officials issued an incident report charging
Giovanni with planning an escape and possessing materials necessary
1

to effectuate an escape.1 A full disciplinary hearing was held on
August 24, at which Giovanni was found guilty and sentenced to
extended lockdown. Under the Prison's disciplinary rules, extended
lockdown is an appropriate penalty for Giovanni's violation. See
State of Louisiana Department of Public Safety and Corrections,
Disciplinary Rules and Procedures for Adult Prisoners 4 (February
5, 1986) ("No prisoner can be placed in extended lockdown for any
reason unless he has been afforded a full hearing before the
Disciplinary Board and was found guilty of ... being a serious
escape risk ...").
Giovanni filed an appeal on August 27, 1988. Prison
regulations give the Secretary of the Louisiana Department of
Correction 120 days to grant or deny a prisoner's appeal; any
appeal not processed within the 120-day limit is automatically
granted. Solely because the Secretary failed to take any action on
Giovanni's appeal within the 120-day period, the appeal was
"granted" on February 22, 1989. According to the Prison's Chief
Legal Counsel, however, "such "granteds' are considered
technicalities. While the report is to be removed from the
inmate's disciplinary record for the purpose of future action, no
other remedy is necessary. He/she will not receive any return of
any privilege lost." (Emphasis in original). Giovanni was
1Prison security had received reports from confidential
informants inside the Prison that Giovanni and another prisoner
were attempting to make a key and were planning an escape. Based
on this information, Prison officials searched Giovanni's cell
and locked hobby shop box. They found a pair of wire cutters and
a round file inside the hobby shop kit and a homemade metal key
in a "butt can" underneath Giovanni's bed.
2

notified that his appeal had been "granted" on April 27, 1989, and
the disciplinary report was expunged from his record on April 28,
1989.
At that time, inmate appeals were processed by a three-member
panel in a closed review procedure. Continued lockdown status was
reviewed about every ninety days thereafter by a lockdown review
board, again in a closed procedure. Giovanni's case was
periodically reviewed by the board pursuant to these procedures,
but it was determined that he posed a continuing threat to
security, and he remained in extended lockdown. The lockdown
review reports indicated that Giovanni was not released from
extended lockdown in part because of the nature of his original
offense.2 Although the disciplinary report had been expunged from
Giovanni's record, a summary of the charges was placed in his
file.3
On March 27, 1990, a state court held a hearing on a writ of
2At the hearing before the magistrate judge, various Prison
officials testified that the nature of the original offense would
be an important consideration in their decision whether to keep
an inmate in extended lockdown and that, if such information were
not part of the record, they would seek it out. They also
testified, however, that the decision to keep an inmate in
extended lockdown was based on the inmate's entire disciplinary
history, not merely any particular incident. The most recent
record document shows that Giovanni's disciplinary record
included some twenty-three separate citations, of varying degrees
of seriousness, including an April 2, 1987, report for threat to
security, for which Giovanni was placed in extended lockdown.
3According to an exhibit Giovanni submitted at the February
9, 1993, hearing before the magistrate judge, the decision to
place such a summary of the disciplinary action and the reasons
for it in an inmate's file after the report has been expunged is
made by the Disciplinary Board on a case-by-case basis and has
long been the policy of the Prison.
3

habeas corpus by another Angola inmate. Fulford v. Smith, No.
11,602 (20th Judicial Dist., La. March 27, 1990). The court there
decided that, when an appeal was "granted" because of the
Secretary's failure to respond within 120 days, the inmate's
disciplinary report must be expunged and that, at each subsequent
periodic review, the inmate must be given notice and an opportunity
to be present. Pursuant to this new procedure, Prison officials
reviewed Giovanni's status on April 1, 1990, and released him from
extended lockdown on April 4, 1990.
Giovanni filed the present suit on September 26, 1989,
challenging the fairness of the August 24, 1988, disciplinary
hearing and the timeliness and outcome of his subsequent appeal.
Specifically, and most significant for present purposes, he
complained that he was denied due process because, although his
appeal had been "granted," he had not been released from extended
lockdown. He sought monetary and injunctive relief under 42 U.S.C.
� 1983. The Prison moved to dismiss Giovanni's claims under Rule
12(b)(6). The magistrate judge recommended that most of Giovanni's
claims related to the procedures employed in his August 24
disciplinary hearing be dismissed, and the district court adopted
those recommendations and granted the Prison's motion to dismiss in
part on May 17, 1990.4 However, taking the allegations of
Giovanni's complaint as true and noting that the Prison had brought
4The district court also adopted the magistrate judge's
recommendation to consolidate Giovanni's original suit with a
subsequent complaint he had brought against additional
defendants.
4

forth no evidence to disprove them, the magistrate judge found that
Giovanni's claim that the granting of his appeal for lapse of the
120-day response period entitled him to be returned to his former
custody status, stated a claim for denial of a protected liberty
interest that could not be dismissed under Rule 12(b)(6).
The magistrate judge held a hearing on February 9, 1993, to
consider this remaining claim. He noted that Giovanni's arguments
that a prisoner has a protected liberty interest in remaining free
from extended lockdown, based on this Court's decision in McCrae v.
Hankins, 720 F.2d 863 (5th Cir.1983), were wide of the mark because
that interest was not implicated when, as in Giovanni's case, the
inmate had been lawfully placed in extended lockdown. The
magistrate judge found that neither the 120-day automatic grant of
appeal rule nor the state court decision in Fulford created a
protected liberty interest in being released from extended lockdown
and recommended dismissing the suit with prejudice.5 The district
court adopted the magistrate judge's recommendations and dismissed
the suit with prejudice on June 2, 1993.
It is this order that Giovanni now appeals. In his pro se
brief, Giovanni addresses only the asserted liberty interest
created by the practice of expunging disciplinary reports when the
120-day period has passed without action by the Secretary on the
appeal. We therefore do not reach the other findings of the
5The magistrate judge also determined that Giovanni had no
protectible liberty interest arising from either the Louisiana
Administrative Procedure Act or a remedial consent decree entered
into by the Prison in an earlier suit. See infra, note 6.
5

magistrate judge's report adopted by the district court. See
supra, note 5.6
Discussion
In the context of prisoners placed in more restrictive
confinement, a protected liberty interest can arise in one of two
ways: when the restriction is imposed for a punitive (as opposed
to an administrative) purpose, and when a state regulation creates
a liberty interest. Mitchell v. Sheriff Department, Lubbock
County, Texas, 995 F.2d 60, 62-63 (5th Cir.1993). Assuming,
arguendo, that Giovanni's lockdown was for a punitive, as opposed
to an administrative, purpose, under our holding in Mitchell the
process due would be that prescribed in Hewitt v. Helms, 459 U.S.
460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983). It is not contended in
this appeal that the August 24, 1988, hearing did not fully satisfy
all the requirements of Hewitt. Moreover, Hewitt does not require
that there be any provision for appeal.7 Consequently, the failure
to act on Giovanni's appeal could not deprive him of the process he
was due by virtue of the assumed punitive nature of the lockdown.
6In any event, previous decisions of this Court support the
magistrate judge's report in these respects. See Green v.
McKaskle, 788 F.2d 1116, 1123 (5th Cir.1986) (holding that
remedial decrees do not create constitutional rights); Martin v.
Blackburn, 581 F.2d 94, 94 (5th Cir.1978) (per curiam) (holding
that failure of prison officials to follow Louisiana
Administrative Procedure Act did not state a claim under section
1983).
7Nor, indeed, is provision for appeal, following an adequate
hearing, required under the more stringent standards of Wolff v.
McDonnell, 418 U.S. 539, 562-73, 94 S.Ct. 2963, 2978-82, 41
L.Ed.2d 935 (1974), applicable to loss of good time credits (as
to which the state law had created a liberty interest).
6

Giovanni's claim, however, is that he had a liberty interest
by virtue of the Prison disciplinary rules.
"[A] State creates a protected liberty interest by placing
substantive limitations on official discretion." Olim v.
Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813
(1983). To satisfy this standard, a regulation must fulfill two
requirements: it must "establish[ ] "substantive predicates' to
govern official decisionmaking and, further, ... mandat[e] the
outcome to be reached upon a finding that the relevant criteria
have been met." Kentucky Dep't of Corrections v. Thompson, 490
U.S. 454, 462, 109 S.Ct. 1904, 1909, 104 L.Ed.2d 506 (1989)
(citation omitted). The Supreme Court has also made clear that, to
create a liberty interest, the law or regulation at issue must
contain "explicitly mandatory language," that is, that it must
"requir[e] that a particular result is to be reached upon a finding
that the substantive predicates are met." Id. at 464, 109 S.Ct. at
1910 (footnote omitted).
This Court has previously held that the Louisiana Department
of Corrections Regulations prescribing reasons for placement in
extended lockdown were sufficient to create a liberty interest in
not being confined to extended lockdown without due process.
McCrae v. Hankins, 720 F.2d 863, 867 (5th Cir.1983). This is
because "[t]he discretion of a Louisiana disciplinary board to
place an inmate in extended lockdown is ... substantively limited
by "particularized standards or criteria [that] guide the ...
decisionmakers' " in classifying inmates to extended lockdown. Id.
7

at 868 (citation omitted).8 Thus, under the regulations, there is
a protected liberty interest in not being transferred to extended
lockdown from the general prison population. But Giovanni does not
challenge before us, and we think the record fully supports, the
district court's conclusion that Giovanni was afforded appropriate
due process protections at his initial disciplinary hearing.
The essence of Giovanni's position is that he was in
substance denied the appeal provided for in the regulations,
because the Secretary did not act on the appeal within the 120 days
required by the regulation and, although as a result his
disciplinary violation was expunged, he was nevertheless not
returned to the general prison population nor afforded a new
hearing. We reject this contention. The rule states simply, "The
Secretary will issue all appeal decisions within 120 days of the
date of the last hearing for each case." It contains no other
standards or criteria to substantively guide or limit the Secretary
in rendering his appeal decisions, nor does it mandate a particular
outcome or a particular form of relief should the Secretary fail to
render a decision within the time period. In our unpublished
decision in Bay v. Lynn, No. 92-3409, 990 F.2d 1252 (5th Cir. April
5, 1993) (per curiam), we held that
"[t]he rules, although providing for "appeal decisions within
120 days,' contain no language that grants a separate right
"not to be punished at all if a proper appeal is not
conducted.' ... [T]he disciplinary rules do not contain a
"substantive predicate' mandating the grant of an appeal or
8We also held in McCrae that the process which was due for
placement in extended lockdown was that mandated by Hewitt v.
Helms. McCrae, 720 F.2d at 868.
8

any other outcome should the appeal decision not be rendered
within 120 days...." Id. at 6.
Because the 120-day rule does not satisfy the criteria set forth in
Kentucky Dep't of Corrections v. Thompson, it creates no
protectible liberty interest in being released from extended
lockdown. Thus, the general rule that prisoners have no protected
interest in a particular custodial classification applies, and
Giovanni can state no cause of action under section 1983. McGruder
v. Phelps, 608 F.2d 1023, 1026 (5th Cir.1979) (citing Fulford v.
Phelps, 365 So.2d 575 (La.App.1978)).
Moreover, where a liberty or property interest is infringed,
the process which is due under the United States Constitution is
that measured by the due process clause, not that called for by
state regulations. Cleveland Board of Education v. Loudermill, 470
U.S. 532, 539-41, 105 S.Ct. 1487, 1492-93, 84 L.Ed.2d 494 (1985).
Mere failure to accord the procedural protections called for by
state law or regulation does not of itself amount to a denial of
due process. See, e.g., Murphy v. Collins, 26 F.3d 541, 543 (5th
Cir.1994); Brown v. Texas A & M University, 804 F.2d 327, 335 (5th
Cir.1986); Levitt v. University of Texas at El Paso, 759 F.2d
1224, 1230-31 (5th Cir.), cert. denied, 474 U.S. 1034, 106 S.Ct.
599, 88 L.Ed.2d 578 (1985); Martin v. Blackburn, 581 F.2d 94, 94
(5th Cir.1978). Thus, in Jackson v. Cain, 864 F.2d 1235 (5th
Cir.1989), a prisoner-plaintiff alleged "that a constitutional
violation occurred because he was not accorded the level of process
provided for in the DOC handbook." Id. at 1251. We stated: "This
argument must fail. A state's failure to follow its own procedural
9

regulations does not establish a violation of due process, because
"constitutional minima may nevertheless have been met.' " Id.
(quoting Brown ). The August 24, 1988, hearing fulfilled all the
constitutional minima and afforded Giovanni all the process he was
due under the United States Constitution. The failure to accord
relief (beyond expungement of the disciplinary violation from the
record) when the Secretary did not act on his appeal within the 120
days provided by the regulation did not violate the United States
Constitution.
Nor does the state trial court holding in Fulford v. Smith
undercut our decision. Fulford places no substantive constraints
on official decisionmaking but simply prescribes additional
procedures to be followed in rendering what is otherwise still a
wholly discretionary decision.9 As noted, a simple failure to
comply with state procedural requirements may be a violation of
state law, but it does not constitute a constitutional violation.
We thus hold that, once an inmate has been properly placed in
extended lockdown and afforded the full process required by Hewitt,
the failure to release him to the general prison population or to
afford him a further hearing because of the Secretary's failure to
act on his appeal within the 120 days specified in the regulation
does not violate his due process rights.
Conclusion
9Nor does Fulford place inmates who have been assigned to
extended lockdown following an otherwise valid disciplinary
hearing on the same footing with inmates who have never been
found guilty of a violation in the first place. Fulford at 53.
10

The judgment of the district court is
AFFIRMED.

11